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Educator has legal costs halved after losing court case

Legal action: Gina Tucker (File photograph)

A veteran teacher who sued the Government after she was passed over for the role of Commissioner of Education will have to pay half of the Government’s legal costs.

Gina Tucker argued in court that she was not given a fair chance at the job, which was filled by former CedarBridge Academy principal Kalmar Richards.

But last year the Court of Appeal upheld the decision of the Board of Education and the Public Service Commission.

Dr Tucker’s lawyer Mark Diel argued that she should not be saddled with the Board of Education and PSC’s legal bills.

But the Court of Appeal ruled in an August 27 decision that a no-costs order was not appropriate.

Justice of Appeal Anthony Smellie wrote: “Had the appellant believed that she was acting other than in her own interests and genuinely wished to raised ‘issues of general public importance’, it is logical and reasonable to expect her to have sought a protective costs order.

“She could have done so at any stage of the proceedings, or even upon the filing of her appeal, but did not do so, nor has any ground been put forward by Mr Diel on her behalf upon which such an order could have been made.

“In light of the essentially personal nature of her complaints and relief sought, there simply was, in our view, no basis upon which such a protective costs order could properly have been made.

“Similarly, given the like considerations which go to the making of a no costs order generally in cases involving the public interest, we do not find any grounds shown here for the making of a no costs order.”

But Mr Justice Smellie agreed that the Board of Education and the PSC – both Government bodies – did not need separate legal representation for the hearings and that it would be unfair to saddle Dr Tucker with all of their legal expenses.

Mr Justice Smellie wrote: “There were no interests which required separate representation, even while we would not hold that separate representation was not desirable or reasonable.

“In the result, we award each of the respondents one-half of its costs, to be taxed if not agreed on the standard basis.”

The decision came after a long-running legal battle between Dr Tucker and the education board.

Dr Tucker alleged the recruitment process for the commissioner’s post was weighted against her because of disagreements between herself and Ms Richards – claims the board denied.

She took her complaint to the Supreme Court for a judicial review, but Assistant Justice John Riihiluoma dismissed the case in February last year.

Mr Justice Riihiluoma said in a written judgment: “I can find no actionable fault in the process used by the Board of Education in its role in recommending Ms Richards to the Public Service Commission for the post of Commissioner of Education.

“It follows that I find there is no fault in the process that would vitiate the Public Service Commission's recommendation of the appointment of Ms Richards as Commissioner of Education to the Governor.”

Dr Tucker took the case to the Court of Appeal, where Mr Diel argued that the use of an interview panel to select a candidate was at odds with the legislation.

He said that the Board of Education had the responsibility to consider the merits of the candidates and their application but instead abdicated the responsibility to an interview panel.

But the Court of Appeal found last year there was “no proper basis” to the complaint that Dr Tucker was deprived of a fair opportunity to secure the job.

•It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers.